United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge.
seeks review of a decision of the Acting Commissioner of
Social Security (hereinafter Commissioner) denying Disability
Insurance Benefits (DIB) and Supplemental Security Income
(SSI) benefits under sections 216(i), 223, 1602, and
1614(a)(3)(A) of the Social Security Act, 42 U.S.C.
§§ 416(i), 423, 1381a, and 1382c(a)(3)(A)
(hereinafter the Act). Finding no error as alleged by
Plaintiff in the Commissioner's final decision, the court
ORDERS that judgment shall be entered pursuant to the fourth
sentence of 42 U.S.C. § 405(g) AFFIRMING that decision.
seeks judicial review of a decision of the Commissioner made
after remand by another court of this district. (Doc. 1).
Plaintiff argues that the Administrative Law Judge (ALJ)
erred in evaluating his mental impairments in the decision on
remand. He argues that the ALJ failed to include all of his
mental limitations in the residual functional capacity (RFC)
assessed. Plaintiff argues that the ALJ erred in finding that
Plaintiff's mental impairments are not severe within the
meaning of the Act, and that he committed reversible error
when he failed to include social limitations in the RFC
court's review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section
405(g) of the Act provides that in judicial review
“[t]he findings of the Commissioner as to any fact, if
supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must
determine whether the ALJ's factual findings are
supported by substantial evidence in the record and whether
he applied the correct legal standard. Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007);
accord, White v. Barnhart, 287 F.3d 903,
905 (10th Cir. 2001). Substantial evidence is more than a
scintilla, but it is less than a preponderance; it is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971);
see also, Wall, 561 F.3d at 1052;
Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.
court may “neither reweigh the evidence nor substitute
[its] judgment for that of the agency.” Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec'y of Health & Human Servs.,
933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir.
2005); see also, Bowling v. Shalala, 36
F.3d 431, 434 (5th Cir. 1994) (The court “may not
reweigh the evidence in the record, nor try the issues de
novo, nor substitute [the Court's] judgment for the
[Commissioner's], even if the evidence preponderates
against the [Commissioner's] decision.”) (quoting
Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988)). Nonetheless, the determination whether substantial
evidence supports the Commissioner's decision is not
simply a quantitative exercise, for evidence is not
substantial if it is overwhelmed by other evidence or if it
constitutes mere conclusion. Gossett, 862 F.2d at
804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.
Commissioner uses the familiar five-step sequential process
to evaluate a claim for disability. 20 C.F.R. §§
404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (citing Williams v. Bowen, 844
F.2d 748, 750 (10th Cir. 1988)). “If a determination
can be made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not
necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps,
the Commissioner determines whether claimant has engaged in
substantial gainful activity since the alleged onset, whether
he has a severe impairment(s), and whether the severity of
his impairment(s) meets or equals the severity of any
impairment in the Listing of Impairments (20 C.F.R., Pt. 404,
Subpt. P, App. 1). Williams, 844 F.2d at 750-51.
After evaluating step three, the Commissioner assesses
claimant's RFC. 20 C.F.R. § 404.1520(e). This
assessment is used at both step four and step five of the
sequential evaluation process. Id.
Commissioner next evaluates steps four and five of the
sequential process--determining at step four whether,
considering the RFC assessed, claimant can perform his past
relevant work; and at step five whether, when also
considering the vocational factors of age, education, and
work experience, claimant is able to perform other work in
the economy. Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In steps one through four
the burden is on Plaintiff to prove a disability that
prevents performance of past relevant work. Blea v.
Barnhart, 466 F.3d 903, 907 (10th Cir. 2006);
accord, Dikeman v. Halter, 245 F.3d 1182,
1184 (10th Cir. 2001); Williams, 844 F.2d at 751
n.2. At step five, the burden shifts to the Commissioner to
show that there are jobs in the economy which are within the
RFC assessed. Id.; Haddock v. Apfel, 196
F.3d 1084, 1088 (10th Cir. 1999).
court finds no error in the ALJ's decision.
claims the ALJ erred because he found Plaintiff's mental
impairments are not severe at step two of the sequential
evaluation process. He claims the error requires remand
because the ALJ erroneously relied on “stale”
medical opinions and discounted those opinions which were
consistent with Plaintiff's subsequent deteriorated
condition, and consequently did not include in the RFC he
assessed social limitations which were required by the record
Commissioner responds that the evidence supports the
ALJ's step two finding that Plaintiff's mental
impairments are not severe. She argues that the ALJ properly
considered Plaintiff's non-severe mental impairments at
the later steps of the sequential evaluation and determined
that Plaintiff was mentally capable of performing only jobs
that require understanding, remembering, and carrying out
simple instructions. She argues that the ALJ's evaluation
of the medical opinions was proper and reasonable and that
the ALJ did not erroneously rely on “stale”
medical opinions “because nothing in the subsequent
medical records supports the disabling limitations that
[Plaintiff] alleges, or supports some type of worsening of
his condition that could render the opinions stale.”
(Comm'r Br. 9).
court agrees with the Commissioner. The evidence supports the
ALJ's finding that Plaintiff's mental impairments are
not “severe.” In his discussion at step two of
the sequential evaluation process, the ALJ summarized and
considered Plaintiff's mental health treatment and
explained why he determined Plaintiff's mental
impairments are not severe. (R. 525-28). Plaintiff is correct
when he points out that “the ALJ agreed that [Mr.]
Hall's condition imposed a moderate limitation with
regard to concentration, persistence, or pace.” (Pl.
Br. 12) (citing R. 527). However, he ignores the ALJ's
explanation that “the moderate difficulties in this
area were not caused by his non-severe affective and anxiety
disorders. Rather, they result from the claimant's
fibromyalgia and chronic fatigue syndrome.” Plaintiff
does not explain why limitations in concentration,
persistence, or pace resulting from physical impairments
would require a finding that a claimant's mental
impairments are severe.
as Plaintiff admits any error in finding impairments
non-severe at step two is harmless so long as the ALJ, in
determining the claimant's RFC, considers the effects
“of all of the claimant's medically determinable
impairments, both those he deems ‘severe' and those
‘not severe.'” Hill v. Astrue, 289
F. App'x. 289, 291-92, (10th Cir. 2008); see
also, Brescia v. Astrue, 287 F. App'x 626,
628-629 (10th Cir. 2008). Therefore, the ...